Appeal, No. 4, Feb. T., 1955, from orders of Court of Common Pleas of Luzerne County, July T., 1948, No. 385, in estate of Michael Pelechacz. Order allowing intervention affirmed; order discharging rule to show cause reversed.
Martin D. Cohn, with him Martin J. O'Donnell, and Laputka, Bayless, Ecker & Cohn, for appellants.
Roy B.Pope, with him P.G. Evansha and Johnston & Pope, for appellees.
Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).
[ 179 Pa. Super. Page 179]
This is an appeal from an order of the Court of Common Pleas of Luzerne County, sitting in banc, allowing petitioners Helen Klimkosky and Mary Chrastina, sisters of Michael Pelechacz, an incompetent person, to intervene in proceedings to revoke a decree approving the private sale of the interest of Michael Pelechacz in certain real estate and discharging a rule to show cause why the decree approving the private sale should not be revoked.
Andrew Pelechacz, father of the incompetent and petitioners, died testate on March 29, 1948. By the terms of his will which was duly admitted to probate the testator devised to Michael Pelechacz and Rosalie Pelechacz, his son and daughter, premises located at 196-198 South Pine Street, Hazleton, Pennsylvania, which was his residence and place of business. This devise was made on condition that Michael and Rosalie provide a home for Helen Pelechacz Klimkosky, another child of testator. The will further provided that "In the event that Michael and Rosalie at any time in the future intend to sell the property known as 196-198 South Pine Street they may do so by mutual agreement
[ 179 Pa. Super. Page 180]
and are released from any obligation to provide for the said Helen Pelechacz except for the payment upon sale of said property to the said Helen Pelechacz of One Hundred ($100.00) Dollars which shall release them from any and all obligations under this Will to the said Helen Pelechacz." On January 9, 1953, upon petition of the Traders Bank and Trust Company of Hazleton, the incompetent's guardian, a decree was entered authorizing the private sale of the incompetent's interest in the real estate devised to him and his sister by his father. The petition averred that the real estate owned by the incompetent was not suitable for the production of income adequate to pay minimum expenses of insurance and taxes and that no repairs had been made to the premises since the appointment of a guardian. Further, it was averred that the prospective purchaser had offered the sum of $2,250.00 less any amounts due and owing for incompetent's share of the taxes at the time of sale. A similar offer was made to the other joint owner, Rosalie Pelechacz Mantone, for her one-half undivided interest in the premises, to which she gave her acceptance. On January 26, 1953, upon petition of Helen Klimkosky, a rule was granted on the Traders Bank and Trust Company of Hazleton, guardian of the estate of the incompetent, to show cause why the decree entered January 9, 1953 should not be revoked and petitioner permitted to purchase the interest of the incompetent at a higher price. The petitioner averred that the sale of the interest of the incompetent was disadvantageous to him as the price of $2,250.00 was inadequate, and that the petitioner was willing to pay the sum of $2,750.00 for the share of Michael Pelechacz, the incompetent. Subsequently, upon the petition of Mary Chrastina, a rule was granted upon the incompetent's guardian to show cause why the petitioner should not be permitted to
[ 179 Pa. Super. Page 181]
intervene as a party in interest in these proceedings and to join her sister, Helen Klimkosky, in the latter's petition to revoke the decree authorizing the private sale of the incompetent's interest in the real estate devised to him and his sister Rosalie. By stipulation of the parties a rule to show cause why Pasco Montone, the purchaser of the property, should not be made a party to these proceedings, was made absolute. On October 31, 1953 the court below held that the petitioners were allowed to intervene in view of the lack of notice to them of the petition of the guardian for leave to sell the interest of the incompetent in the real estate and on the basis of statutory authority. However, the rule to show cause why the decree approving the private sale of the interest of the incompetent should not be revoked was discharged, the court concluding that because of the restriction in the devise requiring the mutual agreement of the devisees the court was powerless to compel the sale to any person not agreeable to Rosalie Pelechacz Mantone. This appeal followed.
The guardian's petition for private sale of the incompetent's interest in the real estate was brough under the provision of $443 of the Incompetents' Estates Act of 1951, June 28, 1951, P.L. 612, 50 PS § 1823, which reads, in part, as follows: "Whenever the court finds it to be for the best interests of the incompetent, a guardian may, for any purpose of administration or distribution, and on the terms, with the security and after the notice directed by the court: (1) ...